Birthright Citizenship Should Be Challenged

“In an interview with the news program “Axios on HBO,” President Trump announced that he plans to issue an executive order ending birthright citizenship, the principle that everyone born in the United States, with a handful of exceptions, is automatically a citizen of the United States. . . . In fact, such an order would undoubtedly be unconstitutional. It would also violate a deeply rooted idea—that anybody, regardless of race, religion, national origin, or the legal status of one’s parents, can be a loyal citizen of this country. . . .

“The only exceptions to [birthright citizenship], in the words of the [14th] Amendment to the Constitution. . . . The only exceptions . . . are persons not ‘subjection to the jurisdiction’ of the United States. Members of Congress at the time made clear that this wording applied only to Native Americans living on reservations . . . and American-born children of foreign diplomats.” – Donald Trump’s Unconstitutional Dreams, Eric Forner, The New York Times, 10/31/18 [Link]

Fact Check of Quote: “The fourteenth Amendment states, All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . .” The key phrase is “subject to the jurisdiction thereof.” If being born in the U.S. is all that is necessary for citizenship, then why was this phrase added? Obviously it adds an additional qualification. What was it?

Contrary to what Forner says, members of Congress did not “make it clear” that jurisdiction only excluded Indians living on reservations and the children of diplomats. Here’s the explanation of Sen. Layman Trumbull who played a key role in shaping the language of the amendment and securing its passage:

“The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof? Not owing allegiance to anyone else. That is what it means.”

The Supreme Court subsequently confirmed this interpretation in The Slaughterhouse Cases (1873), when it stated that “The phrase, ‘subject to the jurisdiction’ was intended to exclude from its operation the children of ministers, counsels, and citizens or subjects of foreign states born within the United States.”

This language would clearly deny birthright citizenship to the children of illegal aliens. As citizens of foreign countries, living in in the U.S. in defiance of American law, they lack allegiance to this country and therefore do not fall under jurisdiction clause. Another Supreme Court decision upholding this view was the Elk case (1884) which ruled that an American Indian born in the U.S. was not a citizen due to his tribal allegiance.

So why do we have birthright citizenship? Its supporters often cite the Supreme Court’s Wong Kim Ark ruling in 1898. It held that the child of Chinese nationals born in this country was an American citizen. Although the parents were not U.S. citizens, it might still be argued that they fell under U.S. jurisdiction by being lawful permanent residents of the United States.

The weight of legal evidence is against the claim that the 14th Amendment upholds birthright citizenship for the children of illegal aliens. What is needed is a clear and unambiguous ruling from the Supreme Court. President Trump’s proposed executive order, by drawing national attention to this issue, is a helpful step toward that goal.

Little John

Permanent link to this article: https://www.aicfoundation.com/birthright-citizenship-should-be-challenged/

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